A Marion County deputy prosecutor's striking of potential jurors has divided an Indiana Court of Appeals panel, with
judges disagreeing about whether it should second-guess a lower court's finding that no racial discrimination was in play
in striking the African-American jurors.

The appellate court issued a 14-page decision April 6 in Edward Killebrew v. State, No. 49A05-0905-CR-246, which
reverses and remands a decision from Marion Superior Judge Steven Eichholtz that struck down Edward Killebrew's objection
to the prosecution's use of peremptory challenges to strike all African-Americans from the jury pool. Judge Paul Mathias
wrote a five-page dissent, saying he would affirm the case because he reads precedent from the Supreme Court of the United
States differently than his colleagues.

"Even though there was some evidence tending to prove racial discrimination, I would not second-guess the credibility
and demeanor judgments of the trial court in making the ultimate factual determination of whether the prosecutor's proffered
race-neutral explanations were believable or simply pretextual," Judge Mathias wrote in his dissent.

The case involves Edward Killebrew's charges for felony cocaine dealing and misdemeanor resisting law enforcement charges
in August 2008, and the subsequent jury selection for his trial that began in March 2009.

Five African-Americans were called as part of the jury venire and the state challenged each of them to be struck - one was
a convicted felon and another was the subject of five police reports, while the state struck another because she was a nurse
and the deputy prosecutor said the office has a policy of always striking nurses because they are too compassionate. Another
was stricken after saying a relative was convicted of drug dealing and he felt the police had acted unfairly in that case,
though a white juror with a similar statement on his jury questionnaire remained seated. The fifth person was struck after
the deputy prosecutor asserted the man had been too "emphatic" in agreeing with how defense counsel described the
state's burden of proof in criminal cases.

In analyzing the case, the appellate panel turned to the landmark juror challenge case of Batson v. Kentucky, 476
U.S. 79, 106 S. Ct. 1712 (1986), that established a three-part test to determine if a challenge was valid. The majority found
that in recent years, the federal justices have made it clear that "courts need not accept any facially neutral reason
for striking a juror and should consider 'all relevant circumstances' in assessing Batson-challenged strikes.

The majority dealt with the main two challenges to individuals who'd mentioned potential bias against the police, but
didn't address the nurse-challenge in anything more than a footnote: "Additionally, reasonable minds could differ
on the desirability of having nurses serve as jurors. However, without evidence that the deputy prosecutor here was being
untruthful with respect to having a policy of routinely striking nurses like A.S. in all cases, regardless of race, we cannot
second guess that claim."

Ultimately, Judges Michael Barnes and Elaine Brown found that there's no meaningful distinction between some of the juror
strikes and non-challenges.

"Batson violations, hopefully, are and should be rare. It should not be impossible, however, for a defendant
to prove a Batson violation. Neither trial courts nor appellate courts should simply blithely accept a facially neutral
reason for striking African-Americans from a jury panel, especially when all African-Americans have been struck. The possibility
of purposeful discrimination in the use of peremptory challenges is very much alive and real...," Judge Barnes wrote.
"Although there is no indication that Marion County prosecutors systematically exclude minorities from juries, courts
must be vigilant in ensuring that the jury selection process in criminal cases is free from any hint of bias."

But Judge Mathias disagreed with his colleagues' caselaw interpretations and findings, admitting that the case was very
close and evidence of possible discrimination did exist enough to overturn the trial court's judgment. He wrote that the
majority read a 2008 U.S. Supreme Court case too broadly, because the justices had also offered other reasons for the prosecution's
challenges to jurors and past cases don't equate to the facts at issue here.

"Although I admit that this is a very close call, under the standard of review applicable to the issues before us, I
cannot say that the trial court's decision to overrule Killebrew's Batson objections constitutes clear error,"
he wrote.

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Michael Hoskins joined Indiana Lawyer in May 2006 and mostly covers the state and federal court systems. He’s received awards from the Indiana Chapter of the Society of Professional Journalists for his work covering the state's juvenile justice system, the federal immigration court system, wrongful conviction issues, and long-running lawsuits regarding prison conditions.

He came from the Daily Journal in Johnson County, where he was a general assignment reporter covering courts and legal issues. Before moving to Indiana in 2004 from southeast Michigan, Hoskins freelanced for the Detroit Free Press and worked for the Spinal Column Newsweekly after graduating with a bachelor’s degree in journalism from Oakland University in 2001. He currently lives in Greenwood with his wife, Susanne, and volunteers with the Juvenile Diabetes Research Foundation.